I am a professor at Santa Clara University School of Law, where I teach and write about Internet Law, Intellectual Property and Advertising Law. Before I became a full-time professor in 2002, I practiced technology law in the Silicon Valley from 1994-2002. I've been blogging at the Technology & Marketing Law Blog since 2005 (http://blog.ericgoldman.org).

In 1996, Congress enacted a powerful statutory immunity for user-generated content, located at 47 U.S.C. 230 (“Section 230″). Section 230 says that websites aren’t liable for third party content except in three specific situations: intellectual property, communications privacy and federal criminal prosecutions. Over the past 16 years, courts have interpreted Section 230′s immunity broadly, giving online providers a robust and predictable way to avoid liability for what their users say and do. As a result, Section 230 has become the foundation for the entire user-generated content industry–and all of the social welfare that goes along with it.

Recently, the Washington state legislature enacted one such law in an overzealous effort to shut down online child prostitution. Even worse, the statute indirectly provided a roadmap for other legislatures to enact other laws that could eviscerate Section 230. Last week, in Backpage and Internet Archive v. McKenna, 2:12-cv-00954-RSM (W.D. Wash. July 27, 2012), a federal judge rejected the Washington legislature’s efforts, turning the case into a major victory for Section 230 and user-generated content.

Background

As part of a nationwide effort to combat “sex trafficking” and online prostitution, various regulators have tried to shut down online classified ads for “escorts” and other adult services. For many years, Craigslist was the leader for that kind of advertising, and in 2009 the Cook County (Illinois) Sheriff sued Craigslist for facilitating prostitution. A federal judge quickly rejected that lawsuit based on Section 230 because the sheriff was trying to hold Craigslist liable for third party advertisements. (Section 230 jurisprudence is clear that third party advertisements are just as protected by the immunity as other types of editorial content from third parties).

Despite that decisive ruling and the strong likelihood that Craigslist’s activities were completely legal, attorneys generals from dozens of states kept hounding Craigslist for offering an “adult services” category. Eventually, despite having won in court, Craigslist gave up and shut down its adult services category.

(Photo credit: edkohler)

While that gave the various anti-prostitution regulators a seeming victory, Craigslist’s exit from the industry didn’t change the underlying marketplace demand or supply for prostitution. As a result, the “escort” ads simply migrated elsewhere–largely to Backpage.com, affiliated with the Village Voice. As the ads migrated, so did the regulators’ attention, and Backpage soon experienced the same regulatory fire that had been directed at Craigslist.

In 2011, Backpage won a lawsuit brought by a child prostitution victim on Section 230 grounds. Combined with Craigslist’s Section 230, it was clear that any regulator seeking to shut down prostitution ads on Backpage–or any other web publication–would have to overcome Section 230 somehow.

The Washington state legislature thought it found such a workaround. Instead of holding Backpage liable for third party advertisements, SB 6251 imposes an age verification obligation on anyone that publishes online prostitution ads. Websites are criminally liable if they “know” they are publishing prostitution ads that depict underage models, but the statute says the websites have a criminal level of “knowledge” unless they can provide documentary proof that the depicted model is an adult. Thus, simply reviewing the ad and making a visual judgment of the model’s age wouldn’t satisfy the statute. This way, the statute criminalizes the website’s failure to do its verification and record-keeping obligations instead of holding the website liable for the third party advertisements.

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It is so refreshing to read a piece by someone who ‘gets it’ that the tactics of these pandering politicians will not help anyone and in fact, do great harm to everyone who uses the internet.

People concerned about children being trafficked into prostitution ought to consider that if we decriminalize consenting adult commercial sex, there might be sufficient resources to help those who are victims of sex traffickers or pillars of the community like the Jerry Sanduskys and the pedophile priests, teachers, preachers, boy scout leaders and law enforcement agents who do NOT find their victims through adult ads on the internet.

Thanks for the comment. Irrespective of our positions on the legality of prostitution, I think it’s prudent to resist being overzealous about imposing liability on secondary and tertiary players. Eric.

Mostly, the police found and arrested adult prostitutes and pimps. When the police go after underage prostitutes they mostly find and arrest adult prostitutes and johns. Why are the police wasting their time on adult prostitutes? Instead of spending that time going after underage prostitutes?

Why aren’t the police finding millions of children forced against their will to have sex for money? Because their aren’t millions of them. And what proof do they have that they were forced against their will?

Why are the police just finding, and arresting consensual adults? Because the child victims either don’t exist or are very few in number. They use the excuse of children to arrest consenting adults. If they are just after children, they why don’t they leave the consenting adults alone? The police arrest the consenting adults that they find Why?

If there is no children involved – why arrest the consenting adult prostitutes, johns, and pimps? They are no children involved? Why are the police wasting their time on adult prostitutes? Instead of spending that time going after underage prostitutes? Because the police are mostly after adult prostitutes, not children.

Were all the underage prostitutes forced and raped? crying, kicking and screaming while being forced, against their will to have sex for money?

If a prostitute is 17 and under the age of 18, she can not give legal consent. So, she could have wanted to be a prostitute, and given consent for sex, but since she is underage, she can not give legal consent, so legally she was “forced” even if she gives total consent to sex and it was consensual – she was “forced” according to the court and justice system. There is a BIG difference between being legally “forced” and truly being physically forced against someone’s will.

This gives the impression that all prostitutes under the age of 18 are “forced” when they may in fact, not have been. If fact, if two people who are both 17 years old have sex, they both are legally considered to be victims and sex predators at the same time. It is strange how the justice system works.

There is hard evidence that the sex slavery/sex trafficking issue continues to report false information and is greatly exaggerated by politicians, that receive fund from the government.

When the police arrest customers of prostitutes and the prostitutes themselves: They try to get the adult women prostitutes to say that they were forced and victims of sex trafficking even though they weren’t. These adult women just flat out say, ‘Nope, that’s not what’s happening.’ No one is forcing me” Then the U.S. Attorney general, senators, the police and government officials say: “We have to help them realize they are victims,” They must be brainwashed by their pimps, and johns. They say that adult women do not have the ability to make decisions for themselves about sex, therefore The government must make all their decisions about sex and who they have sex with for them. So… the police are trying to invent victims? Where no victim exist? The adult women say that no one is forcing them to work in prostitution and the police don’t believe them? So the police want these adult women to lie? and the police are forcing the women to lie about being forced? I thought lying was wrong? And isn’t it against the law to lie? -Not for the police, attorney general and other government officials.

In a single year, there are more victims of violence and murder in marriages and dating relationship than in escort services. The people you know are more dangerous than strangers in most cases. There are human trafficking that exists in marriage and dating all the time. 1 out of 4 marriages or dating relationships result in domestic violence. There are cases where spouses, boyfriend, or girlfriend get murdered by their lover. There are many cases where spouses or lovers are held against their will, raped, beaten, possessed like objects, stalked, slaved by verbal abuse or physical restrain, etc. As for children, there are lovers that come into a relationship and sexually abuse children. These behaviors are consistence with human trafficking behaviors. Human trafficking does NOT have to involve selling someone. If someone is abused underage or held against their will, it is human trafficking. Most high end escort never got hurt by their clients. If you find an escort that serve 100 clients, they do not have 1 out of 4 clients beat them up. If you date or get marry, there is 1 out of 4 chances there is domestic violence in the relationship. The anti-prostitution groups do not cry out about human trafficking in dating relationships and marriages.